Monday, April 25, 2011

(active) Virginia redistricting lawsuit number three makes its way into Federal Court

As discussed on April 20, 2011 there are two active (i.e., not dismissed) redistricting lawsuits filed in Federal Court.

On April 19, 2011 I discussed the mechanics of a redistricting lawsuit if the legislature fails to successfully pass redistricting plan for the Virginia House, Virginia Senate, or the House of Representatives.As part of that discussion I indicated how unlikely it is that any such lawsuit will successfully be litigated in the Courts of the Commonwealth.Essentially, if a case involves interpretation or enforcement of Federal law, which includes the Federal Constitution, the Commonwealth of Virginia has the power to remove the case from state court into Federal Court.

On Friday April 22, the Commonwealth of Virginia removed such a case from the Circuit Court for Hanover County to the U.S. District Court for the Eastern District of Virginia.So now we have three . . .

Lawsuit number 3 - How did we get here?

It appears that on March 25, 2011 three Plaintiffs filed a lawsuit in Hanover County Circuit Court alleging the 2001 apportionment plans for the House, Senate, and U.S. Congress violate the Plaintiff’s Virginia Constitutional, and, in some instances, Federal Constitutional rights.The case does not appear to have been served until last week.Apparently, as the case was being served the Plaintiff’s returned to Court and were granted relief to file an Amended Complaint.The Commonwealth of Virginia, as this case involves interpretation and enforcement of the Federal Constitution, removed the case to Federal Court.

The portions of the Complaints addressing legislative apportionment at the state level do not mention the Federal Constitution within the “Count.”This may have been an attempt to suggest the Federal Courts do not have jurisdiction over the case, thereby preventing removal.Nonetheless, the Federal Constitution is invoked throughout the remainder of the Complaint, and the likelihood of having the case sent back to Hanover Circuit Court is quite low.

The Plaintiffs are Raymond J. Klotz, Jr., Edward Fleischer, and Gerald Burch, Jr. Raymond J. Klotz, Jr. appears to be a minor ($2700 plus $1000 donated to a PAC with no partisan denomination) Republican donor.Edward Fleischer appears to be a minor ($215) Republican donor.Gerald Burch, Jr. appears to be a minor republican donor and former primary candidate for a House race in 2009.If I understand correctly Gerald Burch and Jana Burch (a Plaintiff in the other redistricting lawsuit in the Eastern District of Virginia) appear to be married.I guess they could not agree on which lawyer to hire . . . Counsel, R. Craig Evans appears to be a minor Democratic donor.

Procedural issues

This lawsuit has some procedural problems, all of which seem to have been worked out without harm to the Plaintiffs.

For example:

A. As the case was filed before commencement of the special session it should have been dismissed if filed in Federal Court just like Carter v. SBE I.

B. Filing this case in state court meant it will be delayed, and likely removed to Federal Court anyway.Essentially it is a waste of time in most instances.

C. The Plaintiffs did not serve the lawsuit for nearly a month, and then served the original Complaint and the Amended Complaint almost simultaneously.If the lawsuit was meant to be vigorously pursued, service should have been sought earlier.

D. The Plaintiffs moved to include AG Cuccinelli and the “Commonwealth of Virginia” as parties.These appear to be the only changes in the Amended Complaint.Neither entity is a necessary party, and certainly the inclusion of these entities did not require an additional Motion and Court appearance, and duplicative service of the Amended Complaint within day of service of the first Complaint.

BUT, as I indicated, none of this appears to have any long term negative consequences.In fact, had the case been served and removed to Federal Court in early April, the case might have been dismissed just like Carter v. SBE I.

What does the inclusion of this case mean?

It means we have a few more Plaintiffs and attorneys involved in redistricting litigation in the Eastern District of Virginia.Welcome to the party.

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